Constance J. Ballard v. United States

237 F.2d 582, 99 U.S. App. D.C. 101, 1956 U.S. App. LEXIS 2940

• Court: Court of Appeals for the D.C. Circuit
• Decided: September 27, 1956
• Docket: 13250
• Status: Published

Opinions

WILBUR K. MILLER, Circuit Judge.

Constance Ballard was found guilty of grand larceny, largely on the testimony of Barbara Spencer, an accomplice who was indicted with her and entered a plea of guilty. Barbara testified that she and Constance obtained $5,000 from the victim by means of what is known as the “confidence game.” There was no evidence for the defendant Ballard.

Error is assigned in the trial judge’s refusal to charge that a conviction cannot rest on the uncorroborated testimony of an accomplice. The jury were instructed that “the testimony of an accomplice- should be received with care and scrutinized with caution.” As we said in McQuaid v. United States, 1952, 91 U.S.App.D.C. 229, 198 F.2d 987, 989, in regard to a similar charge, “No error appears herel”

Error is charged in the court’s refusal to give a familiar instruction, requested by the defendant, which suggested certain criteria to be used in determining the credibility of witnesses, such as observing demeanor and considering possible personal interest oír bias. In its charge, the court told the jury they were the sole judges of the facts, and further said:

“You are the sole judges of the credibility of witnesses. It is for you and you alone to determine whether to believe any witness and the weight to be attached to any witness’ testimony as well as the extent to which the witness should be credited.”

It is perhaps better practice to give the requested fuller instruction, even though its standards for judging credibility probably would be adopted anyway by the jury; but We cannot, say its omission here was so prejudicial as to require reversal. A trial judge is not required to¹ instruct in the language selected and suggested by the defendant.

It is further contended that what is known in this jurisdiction as larceny by trick is not included in our larceny statute, § 22-2201, D.C.Code 1951, and must be charged under the false pretense provision of the Code. Here the victim was induced by artifice to part with possession but clearly she did not intend to pass title. Subsequent conversion by the swindlers completed the crime of larceny by trick. Graham v. United States, 1950, 88 U.S.App.D.C. 129, 187 F.2d 87, certiorari denied 1951, 341 U.S. 920, 71 S.Ct. 741, 95 L.Ed. 1353, and earlier cases there cited.

Finally, the appellant says the indictment was fatally defective because her name was followed by the words; “also known as Mary Gomez.” We need not decide whether it was prejudicial to mention the alias, since the point was not made in the trial court.

Affirmed.

1 . The requested instruction was in the following form:

“Credibility of Witnesses'

“In weighing the evidence of witnesses, you have the right to consider their intelligence, their appearance upon the witness stand, their apparent candor and-fairness;' their interest in the result of the trial, if' any; their opportunities of seeing and, knowing the matters concerning which they testify, the probable or improbable nature of the story they tell, and from these things, together with all the facts and circumstances surrounding the case, as disclosed by the testimony, determine where the truth of this matter -lies.”